The Wall Street Journal has published yet another op-ed on Exxon, with the overheated headline claiming the investigation “Scorches Due Process.” But it's less a defense of Exxon or accusation against the investigation than it is a plug for the author’s book, serving as a distraction from the investigations by charging that the system itself is corrupt.
The thrust of the piece, and author Philip Hamburger’s book on the subject (Is Administrative Law Unlawful?), is that government administrators (DOE, EPA, etc) and Attorneys General shouldn’t have the power to issue subpoenas. This is an authority granted to them in the original “Progressive Era”, so his quixotic battle is one that was lost in the early 20th century.
Hamburger’s idea is that AGs shouldn’t be able to subpoena private records without getting a warrant or a grand jury’s permission. This is because granting AGs that power supposedly violates the idea of due process by combining the rolls of judge or grand jury with that of the prosecution (since the AGs are gathering evidence to prosecute the case.)
So because New York AG Eric Schneiderman is a prosecutor and looking for evidence that Exxon broke the law, he…shouldn’t be allowed to look for evidence that Exxon broke the law. If that makes no sense at all, don’t worry, it’s not because you’re not a lawyer. It’s because it makes no sense at all.
[Continued after the jump]
Harvard professor Adrian Vermeule wrote a review of Hamburger’s book on the subject, and it sounds remarkably like real scientists' reviews of climate denial books, pointing out how Hamburger cherry-picked the cases he cites while ignoring at least a half-dozen others that disprove his thesis. Vermuele writes that, "The book makes crippling mistakes about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works.”
Vermeule entertains a colleague’s suggestion that the book should be considered "dystopian constitutional fiction” that “is only masquerading as legal theory.” But Vermeule says even that is too generous, because Hamburger fails to offer some thought provoking or illustrative point, like a work of fiction would. Vermeule likens the book to "a child wrecking a sculpture by Jeff Koons. Some admire Koons’s work, some detest it, but the child isn’t in a position to understand why it might be detestable, and the act is purely destructive, with no illuminating import."
Unlike Hamburger's book though, his op-ed does provide some limited illumination, just not in the way intended. Specifically, it tells us something about the WSJ and the state of Exxon’s defense. Seems the Journal is so desperate to defend the beleaguered multinational giant, it will offer up valuable op-ed space to pointlessly rhetorical and byzantine legal questions only tangentially related to the case. That, in turn, surely says something of the caliber of submissions they’ve received on the issue.
Because in the 800 words Hamburger writes, one thing not claimed is that Exxon is innocent.
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